Saturday, June 29, 2002

Lawyers have been forced to the front lines since September 11th--we are fighting the government on everything, from use of military tribunals to how we will treat detainees and non-citizens, to the serious threat new anti-terror legislation has posed to everyone's civil liberties.

A broad and diverse coalition of national organizations are urging their elected officials to oppose H.R. 4633, the "Driver's License Modernization Act of 2002." This legislation essentially creates a national identification system (read national id. card) through the back door of state drivers' licenses.

Friday, June 28, 2002

If you are looking for something different to read this weekend, how about some of the nicely presented websites maintained on behalf of prisoners who well may be factually innocent of the murders for which they have been convicted and have served major time.

Not every case has DNA available to re-test.

There are many causes of wrongful convictions, from false or manipulated confessions, mistaken eyewitness testimony and prosecutorial misconduct to junk science and lab fraud.

Here are some of the case websites we've been drawn to-- in mostly their words, not our's--the quoted material comes directly from their sites.

Free the WestMemphis 3"Three murdered 8 year olds and three young men in prison for something they did not do"

Lisl Auman"Lisl Auman was in police custody at the time of the crime and yet she serves a lifetime prison term" for felony murder of a police officer.

Lisl is waiting for a decision from the Colorado Supreme Court on whether she will get a new trial.

Free Beverly Monroe"In the evening of March 4, 1992, Roger de la Burde died of a single gunshot wound to his head.

Through a combination of forensic misrepresentation, police and prosecutorial misconduct, and jury error, Beverly Monroe was convicted of first-degree murder on November 2, 1992, and sentenced to 22 years in prison.

On March 28, 2002, Senior Judge Richard L. Williams of the U.S. District Court granted Beverly a writ of habeas corpus, vacating her decade-old conviction on the grounds that prosecutors concealed evidence that supported her innocence, and calling the case "a monument to prosecutorial indiscretions and mishandling."

Evidence proves that Beverly committed no crime...that no crime even occurred. Beverly, who is now 64 years old, was wrongly imprisoned for almost seven years. If the state wins an appeal, she will be forced to return to prison."

For a impartial look at the case which arrives at the same conclusion, check out Was Justice Denied?

Kenney Richey"In 1981, at the age of eighteen, Kenny Richey left his home in Scotland to live with his American Father in Ohio.

In June 1986, one week before his return to the United Kingdom, Kenny was arrested for a crime the evidence shows was not a crime at all.

Since his conviction some months later, he has been sitting on death row, waiting to be strapped into "Old Sparky" Ohio's electric chair.

"...there was no homicide, and no arson. John Maloney was convicted by overzealous prosecutors that only wanted a conviction and not the truth. It is hard to find true justice in this great country of ours, or at least in Green Bay, Wisconsin. "

Delaware yesterday became the first state to draft specific legislation to try and comply with the Supreme Court's decisions upholding the right to a jury determination of the death penalty (Ring case)and prohibiting execution of the mentally retarded.(Atkins case).

According to our trusted death penalty expert, both bills have problems. "What's of concern is the incremental steps that are being proposed. Rather than embracing the spirit of the decisions and making "safe" bills, they drafted bills that, if passed, may be deemed unconstitutional."

The problem with the Ring bill concerning jury sentencing is that it calls for the jurors to make findings on the existence of aggravating factors, yet keeps the actual sentencing decision in the judge's hand. The jury remains in an advisory role only as to what the penalty should be.

The problems with Delaware's Atkins bill are that it allows the judge to delay the retardation finding until the sentencing phase and increases the defendant's burden of proof on retardation from a "preponderance of the evidence" standard to the higher "clear and convincing" standard. Also, once the defense files notice that he intends to raise mental retardation as an issue (which he must at least 90 days before trial), a mandatory court evaluation is ordered, which threatens the defendant's constitutional right to remain silent and not incriminate himself.

The two bills passed the Delaware Senate yesterday, and will now go to the house.

Update 6/28: Leslie Houten was denied parole today because of the "calculated pre-planned manner" of her crime, her history of drug abuse when a teenager, and a tendency to form "destructive relationships."

Former Manson follower Leslie Van Houten, now 52 , will have her 14th parole hearing today. What makes this year different than other years?

This year the Judge ordered the Parole Board to give her a new hearing and to consider her model prison behavior and not just the severity of the offense. If only the severity of the crime were considered, her sentence effectively would be a life sentence without parole instead of the parole-eligible life sentence she received. The parole board has been ordered to tell Van Houten what it is she must do to get parole if they deny her again.

Van Houten has served 30 years in prison. She has apologized for her crime (she wasn't part of the Sharon Tate murders but did play a part in the La Bianca murders the following evening). While in prison she has earned two college degrees and been a model inmate.

We applaud the Judge. Grant Leslie Van Houten parole. She was 19 at the time of the crime, has paid for it with 30 years of her life, and if you have ever listened to her (and we have, since some of her prior parole hearings have been televised) you can't help but feel she's genuine and hardly a threat to anyone now.

More on yesterday's Supreme Court's ruling reinstating a civil rights action against prison officials in the case of an Alabama inmate who repeatedly had been tied to a hitching post, left in the sun for hours without adequate water and bathroom breaks, taunted and more. HOPE V. PELZER (01-309)

The Supreme Court ruled that the guards actions were 'totally without penological justification" and demonstrated "deliberate indifference" to the inmates' health or safety. An obvious Eighth Amendment violation on the facts, said the Justices.

Governmental immunity won't protect the prison officials because "a reasonable officer would have known that using a hitching post as Hope alleged was unlawful. The obvious cruelty inherent in the practice should have provided respondents with some notice that their conduct was unconstitutional." (from the syllabus of the opinion)

How bad was the treatment? According to Atlanta Lawyer Craig Jones who represented the inmate, during the second hitching, at one point guards brought out buckets of water, and then gave it to some dogs. "Like something out of 'Cool Hand Luke." Actually, we think it's a lot worse, read the opinion for the gory details.

What will be the effect of the ruling? Civil rights lawyers say it's a brand new day, at least in the 11th Circuit. Now plaintiffs can pierce the immunity shields and recover damages when state officials inflict needless pain on inmates.

Thursday, June 27, 2002

"MONTPELIER, VERMONT -- Without comment or fanfare, on June 21 Gov. Howard Dean (D) signed legislation setting up a state task force to study how Vermont should go about protecting medical marijuana patients from arrest. While the measure provides no immediate protection to seriously ill Vermonters who need marijuana to relieve
their symptoms, the new law sets the wheels in motion for solid patient protection next year....

The measure, S. 193, establishes a task force "to investigate and assess options for legal protections which will allow
seriously ill Vermonters to use medical marijuana without facing criminal prosecution under Vermont law."

Donna Shea, Legal Director for NORML, writes to say that in a 5-4 decision, the Supreme Court today upheld mandatory drug testing for students who wish to participate in extracurricular activities. NORML had filed an amicus brief against extending the Court's previous ruling in favor of testing athletes to include students who wish to engage in extracurricular activities. Justice Thomas wrote the opinion for the Court. Justice Ginsburg wrote a scathing dissent. The text of the opinion is on the Supreme Court's website. Here are excerpts of the Court's ruling.

Reacting to the decision, NORML charges that while students are taught the Constitution, they are no longer protected by it.

Wednesday, June 26, 2002

Elsewhere, opinions are rolling in about the Supreme Court's rulings the past two weeks rejecting the death penalty for the mentally retarded and requring that juries, not judges, impose the penalty. Will they bring about any kind of sea change in the death penalty itself? What will they mean for those on death row?

The Court said the public defender who filed the lawsuit does not have the right to represent him. The public defender had been appointed by the lower court to represent Hamdi as his "next friend." The appeals court said the public defender didn't have a close enough relationship with Hamdi to be his "next friend." Thus, the dismissal. The Court did not address the ultimate issue of whether Hambi is entitled to a lawyer while he is being held by the military and interrorgated.

The 4th Circuit appointed Hamdi's father as his "next friend."

Hamdi has been held six months and no charges have been filed against him. He was apprehended in Afghanistan and shipped to Guantanamo Bay in Cuba. When officials learned he was born in Louisiana and a U.S. citizen, they shipped him to the U.S. Navy jail in Norfolk, Va. The Government has said it does not intend to charge Hamdi in civilian court.

The Government insists it can hold Hamdi without a lawyer because he is an "enemy combatant" and enemy combatants don't have the same rights as others. Okay, but who determined he was an enemy combatant? The military.

We think the military has the right to accuse someone of being an enemy combatant but it should be a judge who makes the decision. In open court. At a hearing where Hamdi is afforded a right to a lawyer, the right to review the evidence against him, and to call and cross-examine witnesses. Until and unless a court determines he is an enemy combatant, he should retain his rights as an American. To say otherwise means the Government can brand someone with a label and then imprison them indefinitely, even forever. We think that's way too much power to give the Government.

In 1946, an American was imprisoned here because he had fought for the Italian army. The court gave him a lawyer and a hearing on the issue of whether he was an enemy combatant. Hamdi deserves no less.

Tuesday, June 25, 2002

"American Taliban" John Lindh didn't win a venue change from Virginia. TalkLeft yesterday mentioned the venue transfer in the OKC bombing trials...interesting that the Judge in rejecting the comparison first said that Oklahoma was not a national tragedy like Sept. 11...then quickly corrected himself to say of course it was. Probably saved himself a lot of outrage by citizens of Oklahoma. But why not agree with the need for a venue change? Of course everyone in the country knows about Sept. 11...everyone knew about Oklahoma in 1995. The test isn't whether jurors knew about it, but whether they can be fair and not have opinions as to Walker's guilt. Surely the jury pool so close to the Pentagon is going to be more personally and emotionally involved than a jury in Marin County or Alaska. The presumption of innocence means he's entitled to have the trial start with a clean slate in the mind of the jurors.

Moussaoui lost his bid today to have his trial moved to Denver. The Judge ruled he hadn't proved that jurors elsewhere would be more impartial than Virginia jurors. What about the fact that jurors in Virginia are likely to have a more personal interest in the case and a greater stake in the outcome by virtue of the crime occurring in their community?

As Judge Matsch stated in moving the Oklahoma bombing trials from Oklahoma to Denver, our trust in the jurors' ability to put aside prejudicial pre-trial publicity "diminishes when the prior exposure is such that it evokes strong emotional responses or such an identification with those directly affected by the conduct at issue that the jurors feel a personal stake in the outcome. That is also true when there is such identification with a community point of view that jurors feel a sense of obligation to reach a result which will find general acceptance in the relevant audience...."

"Because the penalty of death is by its very nature different from all other punishments in that it is final and irrevocable, the issue of prejudice...must include consideration of whether there is a showing of a predilection toward that penalty. "

Was Moussaoui provided with experts to advise the court on these issues at a hearing? Were studies done comparing the attitudes of Virginia juries with those of other cities? We haven't read about it.

Here is what we know so far.

Moussaoui will be tried in the same community where the crime occurred and which is home to the victims and their families. Many members of the prospective jury pool are employees of the federal Government, the target of the attacks. (Does this make them victims too?)

Moussaoui can't have the advice of his counsel of choice because that lawyer is not licensed in Virginia and doesn't want to enter his appearance for the whole case. (What difference does it make if the lawyer is not intending on appearing in Court but only on providing advice to enable Moussaoui to better represent himself?) He won't be provided with the names and addresses of witnesses who will testify against him because it might be dangerous to the witnesses. He can't have access to all the documents because many are classified. He is representing himself even though he doesn't know the difference between a plea of nolo contendre and guilty (they are in effect the same). He won't even speak with his court-appointed stand-by counsel.

A truly unfortunate thing is that Moussaoui, according to many legal experts, actually may have a valid legal defense to the charges. According to Jonathan Turley on NPR on June 13, 2002, the Government's claims are mostly circumstantial and many of its legal theories are "highly questionable." Turley thinks that with a good lawyer, Moussaoui might have a chance, even in Virginia.

So how does Moussaoui fairly and adequately present his defense in Alexandria, Virginia without a lawyer arguing on his behalf? And how will his trial make our criminal justice system appear to the rest of the world?

We think the answers are painfully obvious. Surely there must be a better way.

The Washington Post is one of the few media sources pointing out the seeming contradiction between two of yesterday's Supreme Court decisions.

In Ring, the death penalty decision, the Court said juries, not judges, must make the decision to impose death sentences. Allowing a judge to impose a sentence by considering facts not brought before or ruled on by a jury violates a defendant's constitutional right to a jury trial. We agree.

But in the Harris decision yesterday, the Court upheld a judge's imposition of a higher sentence on a defendant who possessed a gun during the course of the crime for which he was convicted--even though the defendant was never charged with a gun crime and the jury never considered the issue. We disagree.

The effect of the Harris ruling is to uphold thousands of mandatory minimum sentences around the country. Our friend FAMM (Families Against Mandatory Minimums) submitted a brief in the Harris case arguing that mandatory minimums are "expensive and inefficient, perpetuate unwarranted and unjust sentencing disparities, and transfer the sentencing function unwisely from the judiciary to the prosecution." So true. The FAMM Press Release on the Harris decision clearly points out the unfairness of the decision and the need for legislative reform for mandatory minimum sentences.

What's the difference between the two cases? Isn't the actual sentence in both cases being determined by judges based on facts not presented to the jury ? The Court says the issue in the mandatory minimum gun case does not involve an "element of the offense" but merely a "sentencing factor." Aggravating factors in death cases, on the other hand, are the "functional equivalent" of "an element of the offense." Elements of offenses must be submitted to juries. Sentencing factors do not.

In addition, the Court reasons that the death penalty case involves a determination of the maximum penalty while the mandatory minimum gun case involves a determination of the minimum penalty without affecting the maximum sentence. Got that?

While we don't often agree with Justice Thomas, he makes a good point in the Harris dissent when he says "Whether one raises the floor or raises the ceiling it is impossible to dispute that the defendant is exposed to greater punishment than is otherwise prescribed."

Monday, June 24, 2002

Even though the U.S. is not a party to the International Criminal Court which opens for business July 1, criminal defense lawyers are fighting to ensure defendants before the court are treated fairly. Thus, the formation of the International Criminal Bar this weekend in Montreal. Four members of the National Association of Criminal Defense Lawyers were on hand, and as Past NACDL President Nancy Hollander told the Assembly, defendants before the court "will be people who will be hated, and the lawyers who represent them will be hated. But let it never be said that an accused appeared before the International Criminal Court without a lawyer by his or her side." In attendance were 350 lawyers from 48 countries and 68 international, regional, and national bars and numerous non-governmental organizations from around the world.

The prosecutors in the Moussaoui trial insist in a court filing today that Pentagon jurors can be fair. Moussaoui Prosecutors Oppose Move to Denver. Of course they object. Virginia is one of the most conservative jurisdictions in the country. We've complained before that the Pentagon is only 9 miles from the courthouse. And that the jury pool will be overpopulated with Government personnel. But also consider that Moussaoui is a person of color and the jury pool in Virginia will be predominantly white. Why create reversible error before the trial? Give the man a change of venue. Let's go for justice, not revenge. We recommend Alaska.

Huge News! Supreme Court Overturns Judge-Imposed Death Sentences. Dozens of death verdicts are overturned. This may affect over 150 Cases. It was a 7-2 ruling. Five states, including Colorado, allowed sentencing in death cases to be determined by the Judge instead of the jury that convicted the defendant. The high court confirmed that this violates the defendant's constitutional right to a trial by jury. We're on a roll! Read the Full Opinion Here .

The National Coalition to Abolish the Death Penalty gives high praise to today's Supreme Court ruling . A quote: “The Supreme Court has recognized that executing mentally retarded people violates the evolving standards of decency that mark the progress of a maturing society,” said NCADP Executive Director Steven W. Hawkins. “The next step for the court should be to apply the same, exact standard to the execution of youthful offenders.”

"The cost of the death penalty has been found to be $2.16 million over the cost of a non-death penalty sentence of life imprisonment. On a national basis these figures translate to over $1 billion dollars spent since 1976 on the death penalty.

In Colorado it is estimated that approximately 50 million dollars has been spent in seeking the death penalty against Colorado prisoners in the last 26 years. That amounts to nearly $17 million for each of the two currently valid death sentences and one execution in Colorado."

Sunday, June 23, 2002

The death penalty could be a significant issue in this year's elections. Take for example, South Carolina, where death penalty opponent Alex Sanders is running against death penalty supporter and ultra-conservative Lindsay Graham. We all remember Graham for his prosecution of President Clinton in the House. Sanders opposes the death penalty for religious reasons. Always has. "I've been saying all of my life that I believe capital punishment is contrary to the will of God. I can't change my position on that." Graham's position: the death penalty is "good public policy." ("The State, Columbia, SC, March 9, 2002, page B! for those of you with Lexis or Nexis).

Sanders and Graham will face off in November over the Senate seat vacated by retiring Strom Thurmond. TalkLeft heartily supports Alex Sanders. This is one race we will be following closely.

On Meet the Press, this morning, Sen. John Kerry responded "absolutely" when Tim Russert asked if he'd favor a moratorium. Kerry also ran off statistics on the 100 death row exonerations and hinted at abolition (versus just a moratorium) as a result of studies.

Very impressive new series "Deadly Distinction" analyzing the Death Penalty, particularly in Texas, began Saturday in the Houston Chronicle. Part 1 is by reporter Mike Tolson and discusses Harris County's role as a pipeline to death row. The four-part series examines why, and explores whether justice is served. The series also notes a new Houston Chronicle opinion poll showing that Harris County residents are less supportive of the death penalty than their fellow Texans.

Mother Jones points out today that we also have to keep working to stop execution of the mentally ill.